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lördag 25 augusti 2012

Can Julian Assange be extradited from Sweden or from the UK to the US? Yes–but unlilkely.

Four days ago, I resolved to turn my attention to issues other than Julian Assange. However, I have been called again and again by journalists, including from Spain and Australia. And then I learned that a blog post from my colleague Mark Klamberg had been invoked by the Guardian to prove a point that was incorrect (not Mark’s fault, though). I have therefore translated and edited a couple of my earlier submissionss (17 and 20 August) for an international audience. I will focus on the extradition issue, but in order to be comprehensive, I will add a few words on diplomatic immunity and diplomatic asylum. (My apologies for any mistakes in the text; it is late at night.)

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Assange can in principle be extradited from Sweden to the U.S., but that would require that a number of conditions be met, including that the U.S. guarantees that the death penalty will not be imposed / enforced, that the crimes are not considered to be political offenses or military offense, and that there is double criminality, meaning that the act is criminal also under the laws of the country from which extraditions is sought. When extradition requests are made from the US, the Americans regularly guarantee that the the death penalty will not imposed or carried out. Therefore, I believe that if a request is made, the crucial issue is whether the there is double criminality and whether it is for a non-political and non-military crime.
No request for extradition has been made to Swedish authorities, and no charges have been made public yet in the United States. There are speculations, however, that there is already a "sealed indictment", meaning a secret indictment. It is difficult to know what any charges would concern. The former U.S. legal adviser in the US State Department, John Bellinger III, believes it could be espionage (see here). Other sources say that it could also be about computer crimes (see here).
Espionage is considered a political crime, so for that Assange could not be extradited. Both Swedish law and the Swedish extradition treaty with the United States prohibit extradition for such offenses. Further, he could surely not be extradited for a crime charged before a court martial, since that would be considered a military crime. Hence, he could not be sent to Guantanamo. If instead a prosecuting concerns ordinary crimes, such as computer crimes, the matter becomes more complicated. If this "ordinary" crime also has a political nature extradition may occur only "if the act in the particular case is considered to be in the nature of a non-political crime", see Sec 6, Swedish Extradition Act (here).
Ecuador asked for guarantees from the Swedish Government that Assange not be extradited. This has been the subject of a fairly heated debate between David Allen Green of the New Statesman and Glenn Grenwald of the Guardian. To put it shortly, Green is right, but his argument can be misinterpreted (no need to develop that here, though). As Klamberg has explained in his blog post on the Swedish extradition procedure, the Government always makes the final decision. However – and this is a very important caveat – even if the Government has leeway under national law, it is bound by international law. Both the Swedish and the UK Governments have extradition agreements with the US, and these agreements provide that extradition shall take place, if the legal requirements are met. Hence, the Government could not provide a guarantee, without potentially violating an international obligatoin.
The conclusion is: the possibility of extradition exists, but a number of conditions must be met (including that the crime is not political), and it is far from certain that a U.S. extradition request would meet such requirements. In addition, the UK – which hands over Assange to Sweden – has a veto, under Sec 28 of the Framework Decision on the European Arrest Warrant.
However, it is extremely important to bear in mind – as already implied above -- that Assange can be extradited also from the UK (incidentally America's closest allies). It has been said that at present there is a legal-technical barrier to extradition from Britain. My understanding is that the technical barriers consists of the Swedish request for surrender, since Sweden, so to speak, is first in line. (Compare, for instance, Article 15(e) of the UK-US Agreement, here.) If this is true, it is – quite ironically -- Sweden's request, which currently constitutes the main protection for Assange against extradition from Britain to the United States. For me, it is thus completely incomprehensible how one can say that the Swedish process is a “honey trap” for Assange, since he is likely at greater risk of extradition from the UK, and since he can, in principle, be extradited from any country.
On the site www.justice4assange.com it is alleged that in the Swedish extradition agreement with the U.S. there is a special summary procedure that so to speak bypasses the usual requirement that the crime may not be political, that the death penalty may not be imposed, etc. On the same site is also stated that there is no such procedure in the US agreement with the UK (see here). Both of these claims are completely wrong. (The other arguments are hardly worthy of comment.)
First, this "temporary surrender" procedure, which is found in Article V of the Swedish Agreement (see p 74 of the Swedish Government Bill 2004/05: 46; here), is subject to exactly the same standards as ordinary extradition. The purpose of this procedure is not to circumvent the other terms of the agreement, but to enable a temporary extradition of a person, for example to enable him/her to participate in an ongoing process before being returned to the first country. Secondly, the UK has an identical provision (word by word!) in Article 14 of the Agreement with the U.S. (see here).
As support for the claim that it would be more difficult to request extradition from Britain, justice4assange quoted the above-mentioned John Bellinger III, who says
“certainly Assange's lawyers would mount a very vigorous opposition in either case, in London in particular. Past U.S. extradition requests for criminals from the UK have faced vigorous opposition, and a number of people have successfully resisted that through appeals through the House of Lords and ultimately all the way up to the European Court of Human Rights. We can anticipate lengthy litigation.” (See the quote here).
This omits, however, the first sentences of the quoted paragraph (here):
“With respect to the UK, we have a new and well-functioning extradition treaty that was Negotiated just a few years ago between the United States and the UK, and a very good relationship extradition government to government. In general, I might expect that the U.S. government would try to have him extradited from the UK rather than from Sweden, and the UK does have some discretion to extradite him to the United States rather than to Sweden.”
Hence, if you read the entire quote, a different picture emerges than that given in the tendentious extract. It should be added here that Assange obviously has the same opportunity to complain to the European Court about an extradition from Sweden as if the request had occurred in the UK.

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The Ecuadorian asylum itself has no impact whatsoever on the process between the UK and Sweden. The granting of asylum is a sovereign, unilateral Ecuadorian decision and does not bind other states in any way. (The 1951 Refugee Convention is relevant only in that no state may send Assange to a country where he could face persecution. If it is claimed that Assange would be persecuted in the United States, that may be asserted in any extradition process in Sweden, and in such a case, only the facts are material; Ecuador’s grant of asylum has no relevance.)

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Britain cannot, of course, "storm" the Ecuadorian embassy at this juncture, because the embassy is inviolable under the 1961 Vienna Convention on Diplomatic Relations (Article 22). It would, by the way, have been insane to do so, because that would have jeopardized the safety of British diplomatic missions and diplomats around the world.
However, one can in principle deprive its embassy of its diplomatic status, and then eventually intervene, but certainly not from one day to another. Quite how it's done is not entirely clear. A host country (ie the UK in this case) must continue to respect an embassy even if diplomatic relations are broken off (Article 45). On the other hand, established diplomatic relations exist with "mutual consent" (Article 2). My interpretation (which is supported by an international expert; see this blog) is that Britain can terminate diplomatic relations with Ecuador, and after a reasonable "grace period" find that the inviolability of the former diplomatic premises has ended. After all, it would be absurd to claim that diplomatic inviolability would be eternal, even after diplomatic relations have been cut. However, to cut off diplomatic relations would be a pretty drastic step.
The term diplomatic asylum, by the way, means that Assange has been given asylum at the embassy, ​​not that he is a diplomat or will be granted diplomatic status. Diplomatic asylum is a term that is more often used in Latin America.

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My objections to the claims by Assange and his supporters about Swedish extradition law and related matters do not mean that I believe that Assange is guilty – I have no informed view on that issue. Nor do I have any idea of ​​whether the Swedish prosecution has acted in the most appropriate manner, whether the Swedish penal lawsuit is perfect, or whether Assange would receive a fair trial in the United States. Even less is this about his activities in Wikileaks. In fact, I am neither an Assange critic nor an Assange supporter; my feelings are rather mixed. I am, however, unequivocally a supporter of the rule of law and a critic of those who distort facts in bad faith. But it should also be acknowledged that misunderstandings in this affair have been caused by the fact that the legal regimes involved are not only complex but also numerous (international law, bilateral treaties, EU law, Swedish law, UK law, US law).

14 kommentarer:

Ivan
sa...

Thank you for an informative blog post.

Foreign Minister Carl Bildt is on record claiming that the reason the Government can't offer a guarantee against extradition is that such a guarantee would constitute "ministerial rule", and as such be in breach of the Swedish constitution.

This argument, about the independence of the courts, does not figure at all in your analysis. Does it have any merit at all in your opinion?

Thanx for the question. Bildt probably means that he cannot enter into an agreement on extradition with Ecuador a) because extradition decisions are made by the whole Cabinet and b) there is no legal basis in Swedish law for a decision NEVER to extradite a person, no matter what the crime.

Thank you. I have been blogging this as a layman due to the outlandish claims benign made. I see I need to make a couple of corrections but this is largely what people who are skeptical of the claims made by justice4assange have been saying.

My understanding is that:It is completely up to the Swedish courts to determine if a given extradition request is legally acceptable or not.If the courts determine that all is in order, it is still open to the executive to prevent the extradition.

A decision to NEVER extradite a named person would seem very unwise.What about a decision that the person would not be extradited within x days of his being on Swedish soil and being free to leave?

Assange arrives in Sweden.He will be under arrest from the start.He is interviewed by the prosecutor. That interview is why that prosecutor wants him in Sweden.Depending on the content of the interview, and perhaps some further investigation indicated by the interview, there might or not be a trial.If there is a trial, Assange ends up in prison or not.What is important is that at some stage, sooner or later, Assange will become, on a certain date, free to leave Sweden for the very first time since he arrived.

What about a guarantee that he would not be extradited or held for extradition proceedings within x days of that date.This would be on the basis that he is at all times free to leave during those x days. It would be unfortunate if he were detained for dropping litter just as he was to board an aircraft.

Would such a guarantee be so impossible?

Assange is not the only one whose life has been on hold during all of this time. There are also two Swedish citizens who would no doubt greatly appreciate a final resolution of this matter as soon as possible.

If the government does not have leeway under the Sweden-US extradition treaty, would this suggest that the treaty differs significantly from the UK-US extradition treaty?

I ask because (as I understand it) the UK courts approved the extradition of Pinochet, but the UK executive branch stepped in to stop it. Clearly they had some leeway.

Of course, in 2000 they were then not operating under the current UK-US treaty, so perhaps something crucial has changed in the new one. But if not, what differences (if any) exist is an interesting question.

Hi - when you say the Government has the final decision under domestic law but is bound by international law - why could the Swedish government not choose to decide against extradition even if the supreme court had ruled it legal? Is it not for the Government to decide how Sweden is to comply with its treaty obligations and not the supreme court? And surely if it were claimed (say by the US) that Sweden had thus flouted its treaty obligations would this not be a matter - under international law for some international court or tribunal or arbitration system to resolve?

In other words is the jurisdiction of the supreme court not limited to domestic law and not international law?

Is the Swedish Government bound by its domestic law to comply with decisions that the supreme court makes over international law? I somehow doubt it.

I think this reference is making the same point as I am trying to make above http://www.jstor.org/stable/1120372

"However, the statute should probably be interpreted to grant the Secretary only the limited discretion to differ from the courts in the matter of treaty interpretation. In fact, the Secretary has always based his refusal to surrender upon a determination that the treaty did not require extradition in that instance. Thus, a formulation of the limits of the Secretary's discretion can be derived indirectly from executive and judicial construction of our treaty undertakings."

I have read both David Allen Green's and Glenn Greenwald's articles and I must say I am baffled by the way Mark Klamberg and Pål Wrange bend over backwards to deny what is blindingly obvious, namely that Mr Green's article contains a glaring factual mistake, that should be corrected by his publication asap. That happens to be the main point addressed by Mr Greenwald's article in the guardian, and quite frankly, all the evidence produced by the different experts, including those that claim he is wrong, shows unequivocally that, contrary to Mr Green's assertion, the final word on an extradition rests with the Swedish goverment, and not the courts.

I understand Pål Wrange's contention that this doesn't mean the Swedish government can do as they please, since they are still constrained by international agreements. This is hardly news to anybody, and I don't recollect anyone demanding that the Swedish government ignore those agreements. But crucially this is most emphatically NOT what Mr Green wrote. The fact that David Allen Green, Pål Wrange and Mark Klamberg seem to reach the same conclusion regarding Sweden's inability to meet Ecuador's request for guarantees does not and can not alter the falseness of the premise on which Mr Green's based his argumentation. Therefore a correction is still needed.

As to wether the Swedish government has sufficient leeway to meet the Ecuadorian request, I also agree with Mr Greenwald's view. I find it really hard to swallow that averagely skilful politicians can not work out a compromise with Ecuadorian officials, consistent with a resonable interpretation of Swedish law and international commitments, which would make it possible to deal with the the allegations facing Mr Assange, while at the same time offering sufficient safeguards against his extradition to the U.S. in connection with his activities in Wikileaks. The fact that the Swedish authorities have refused point blank to discuss the issue, certainly strengthens Ecuador case for granting asylum to Mr Assange. Furthermore, the extraordinary threat issued by the British government to the Ecuadorian Embassy, paradoxically in the name of proceeding with what they claim is a run-of-the-mill extradition case, doesn't exactly allay the suspicions of those who believe that the rationale for the British government actions is quite different from what is oficially stated. That, of course, remains speculative, and I understand Pål Wrange has no interesest in discussing such matters.

Be that as it may, it is unquestionable that:David Allen Green has written a factually inaccurate article. His aim, as clearly stated, is to submit indisputable legal facts, and that's clearly not the case. He should acknowledge his error. On the other hand Glenn Greenwald has written a factually accurate article, which also contains viewpoints, clearly presented as such, as to how the case may be resolved. Of course you don't have to subscribe to his opinions, but I believe that any fair-minded person would admit, that in the Greenwald vs Green "heated debate" over whether the courts or the government have the final say the former is 100% right. How Pål Wrange manages to come to the opposite conclusion is quite beyond me.

Pål, it would be interesting if you looked into how Gottfrid Swartholm Warg was fetched from Phnom Phenh. According to his friend in the city[1], civil servants may have bent the rules and among other things denied the right to an attorney.

Perhaps, Mr Wrange, you will find time to extend your 'analysis' to estimate the likelihood of Sweden simply bundling Mr Assange with a sedative suppository shoved up his bum onto a CIA jet in the dead of night without the benefit of any Court proceedings, then nonchalantly claiming "Well, they seemed jolly decent chaps and promised not to torture him before landing in Whereverstan!"?